Michigan Supreme Court 

# Order

Lansing, Michigan

November 13, 2006 Clifford W. Taylor, Chief Justice

131638 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan SCOTT R. MOORE, D eceased, and JESSICA DOUGLAS, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 131638 COA: 267751 WCAC: 02-000403 PRESTIGE PAINTING and CONTRUCTION ASSOCIATION OF MICHIGAN, Defendants-Appellants.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the June 2, 2006 order of the Court of Appeals is considered and, pursua nt to MCR 7.30 2(G)(1), in lieu of granting leave to appeal, we REMAND th is case to the Court of Appeal s for consideration, as on leave granted, of the question whethe r the Workers’ Comp ensation Appellate Commission erred in holding that the decedent had “deserted” th e plaintiff’s daughter, so as to make the daughter a conclusive de pendent under the second sentence of MCL 418.331(b).

We do not retain jurisdiction.

C ORRIGAN , J., concurs and states as follows:

I concur with the Court’s decision to rem and this case to the Court of Appeals for consideration as on leave granted. I write separately to highlight my concerns about the Workers’ Compensation Appellate Commission’s (WCAC’s) analysis.

I. Facts

Plaintiff Jessica Douglas gave birth to a daughter whom she named Jamie.
Plaintiff now contends that she was in an exclusive sexual relationship with Scott Moore at the time of Jamie’s conception. Aft er Jamie was born, plai ntiff and her daughter
moved in with Moore. But about two mont hs later, plaintiff and Moore quarreled, so plaintiff and her daughter move d back to plainti ff’s parents’ home. From that point2

forward, Moore provided no financial support to plaintiff or her daughter. Moore did, however, sue to determine Ja mie’s paternity. Five days before the paternity hearing, Moore died in a workplace accident. He wa s employed by defenda nt at the time. Plaintiff Jessica Douglas sought workers’ co mpensation death ben efits on behalf of Jamie. Defendant and its insurer objected , challenging whether Jamie was Moore’s daughter, and, if so, whether Jamie was Moore’s dependent. The WCAC ultimately found that plaintiff had met her burden of proving that Moore wa s Jamie’s father, and
that Jamie was a conclusive dependent of Moore because he had “deserted” her under MCL 418.331(b). The Court of Appeals denied leave to appeal.

II. Discussion

I have three concerns regard ing the WCAC’s analysis in affirming the magistrate’s award of death benefits to plai ntiff on behalf of her daughter.

First, the WCAC relied on a “court docu ment” that was apparently not in the record. In affirming the magistrate’s dete rmination of paternity, the WCAC relied on Moore’s “admission in the pat ernity petition” and “[p]lain tiff’s exhibit #1, a court document, [that] eviden ces that it was Mr. Moore who was th e plaintiff in a paternity suit, trying to establish his rights.” (WCAC opinion, p 5.) As Commissioner Przybylo pointed out in his dissent, the WCAC could not properly consider th e paternity complaint as an admission because the records from the paternity action were never introduced as
evidence in the workers’ compensation action. I qu estion how the WCAC arrived at any conclusion regarding matte rs not in evidence.

Second, I question the WCAC holding that Jamie Douglas is a conclusive dependent of Moore because Moore “deserted” her with in the meaning of MCL 418.331(b). MCL 41 8.331(b) provides, in pertinent part:

The following persons shall be conc lusively presumed to be wholly dependent for support upon a deceased employee:

*** (b) A child under the age of 16 years . . . . In the event of the death of an employee who has at the time of death a living child by a former spouse or a child who has been deserted by su ch deceased employee under the age of 16 years, . . . such child shall be conclu sively presumed to be wholly dependent for su pport upon the deceased employee, even though not living with the deceased employee at the time of death and in all cases
the death benefit shall be divided be tween or among the surviving spouse
and all the children of the deceased employee, and all other persons, if any,_______________________________________ __ 3

who are wholly dependent up on the deceased employee, in equal shares the surviving spouse taking the same share as a child.
In determining that Moore “deserted” Jamie, the WCAC stated, “When a parent is attempting to establish paternity in court a nd at the same time fails to support the involved child, he is as much a deserter of his child as the father who leaves town and disguises his identity to avoid supporting his child born out of wedlock.” (WCAC opinion, p 8.) At the time of Moore’s death, Moore and plain tiff were not married. It had
not been established that Jamie was Moore’s child. In fact, it appears that plaintiff did
not concede that Moore was Jami e’s father, because, if she ha d, a paternity suit would not have been necessary. Becau se there was a question regard ing paternity, Moore had no established legal obligation to support Jamie. Further, it was understandable that Moore would not provide support to a woman who had left him and taken with her a child he
was not sure was his own. How could M oore desert Jamie when there had been no
determination before Moore died that he had a legal obligation to support Jamie or that
Jamie was Moore’s “child ” under MCL 418.331(b)?

Third, the WCAC decision appears to be rooted in the WCAC’s own views of “socially remedial legislation” (WCAC opinion, p 8) and ba sed on inapplicable case law purportedly supporting these vi ews, rather than on the lang uage of the statute. In determining that Moore “deserted” Jamie, the WCAC focused on the need to treat legitimate and illegitimate children equally, citing Bettelon v Metalock Repair Service

, 137 Mich App 448 (1984). The issue in Bettelon was whether a decedent’s illegitimate child could be considered a dependent who is entitled to benefits. The Bettelon panel held that “[w]here paternity is f ound, we hold that an illegitim ate child must be treated no differently from a legitim ate child in determ ining dependency.” Id. at 453. But this discussion of legitimacy in Bettelon does not address the situ ation in the instant case, where Moore’s paternity was not established before he died . There is no dispute that legitimate and illegitimat e children are equally en titled to benefits under the statute. If Jamie is not a conclusive depe ndent, it is not because she wa s born out of wedlock, but
because Moore did not “desert” her under the meaning of the statute. In fact, even if plaintiff and Moore were m arried when Jamie was born and remained married until Moore died, Jamie would not be a conclusi ve dependent under MCL 418.331(b) unless
Moore “deserted” her.

t1107 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

November 13, 2006

Clerk